Making Sure NSA Reform Isn’t Caught in the Gears of the D.C. Machine

Congress has been poised to move on powerful legislation to reform the NSA for months, so what’s slowing things down?

It’s been over ten months since the Guardian published the first disclosure of secret documents confirming the true depths of NSA surveillance, and Congress has still not touched the shoddy legal architecture of NSA spying.

There have been myriad NSA bills presented in Congress since last June. None of them are comprehensive proposals that fix all the problems. Many of them seem to be dead in the water, languishing in committee.

However, several proposals remain contenders. Some are deceptive fake fixes, disguised as reform while attempting to further entrench dragnet surveillance, while some of them are an excellent starting point for real change.

The two fake fix proposals include the FISA Improvement Act (S.1631), which was written by the chair of the Senate Intelligence Committee, Dianne Feinstein, and the FISA Transparency and Modernization Act (H.R. 4291), which was written by the chairs of the House Intelligence Committee. These bills don’t just put lipstick on a pig; they actually create new legal authority for NSA spying while providing political cover to its biggest supporters. And they come as no surprise from Intelligence Committee leaders who havestaunchlydefended the NSA's programs.

Senator Diane Feinstein’s FISA Improvements Act (FIA) codifies some of the worst interpretations of the Foreign Intelligence Surveillance Act (FISA), one of the laws governing the NSA's spying. Among other issues, the bill would codify the government’s bad interpretation of Section 702 of FISA. The NSA uses Section 702 to justify mass collection and warrantless searches of legalizing of calls and emails. It includes minimal transparency requirements. Introduced by one of the NSA’s biggest defenders, this bill was marked up in secret and passed out of the Senate Intelligence Committee in December of 2013. Fortunately, the FIA hasn’t been voted on, and it has no cosponsors and no companion bill in the House.

The FISA Transparency and Modernization Act, meanwhile, creates a new surveillance regime—while again making only minimal changes to Section 215, which allows bulk collection of telephone metadata. The bill could allow the government to send orders for production of communications records directly to electronic communication service providers without any judicial approval. The bill is still in committee, but it potentially represents more of a threat than the FIA. It has 12 cosponsors, all of whom are hard line NSA supporters.

If you have any doubt about how bogus the FISA Transparency and Modernization Act is, read the op-ed that Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD) wrote in support of their bill. They assert that bulk metadata collection “could have prevented 9/11,” ignoring the analysis from both the Privacy and Civil Liberties Oversight Board and the President’s Review Group that suggests that this data has little, if any, security value. They also write that their “bill seeks to restore the American people's confidence in NSA programs”—rather than restoring the rights that have been damaged by NSA programs. Rep. Peter King (R-NY), one of the bill’s co-sponsors, also said: “I don’t think the reforms are necessary, but I think it can save the program.” Fortunately, the public, the Privacy and Civil Liberties Oversight Board, and the 164members of Congress supporting the USA FREEDOM Act, do not agree with Rep. King.

The authors of the FISA Transparency and Modernization Act are using manipulative language of fear to garner support for their fake fix. But their goal of simply appeasing critics of unconstitutional dragnet NSA surveillance is transparent.

Obama’s elusive promises of reform

President Obama’s response to NSA surveillance has been sluggish. After the first FISA Court order was made public, the President defended NSA surveillance. In recent months, he’s finally conceded that there are problems with dragnet spying and has made specific promises, though he hasn’t really addressed the myriad issues with NSA spying. While we have seen the President's official statement and fact sheet on his proposed reforms, we still haven’t seen his promises become concrete legislative proposals.

So what’s standing in the way of passing legislation today?

There’s an important player in the discussion around NSA legislation, and that person is Rep. Bob Goodlatte (R-VA), the powerful chair of the House Judiciary Committee. Rep. Goodlatte made it clear in a recent interview that any bill addressing NSA surveillance must go through the Judiciary Committee.

The question is when he will exert his authority to make that happen. In his interview with C-SPAN he made some revealing statements about what any potential NSA legislation should look like and his views on current proposals. He made it clear that he believes Congress needs to tackle NSA surveillance, and noted that any legislation from the Judiciary, unlike the FISA Improvements Act, would “go much more strongly towards protecting the civil liberties of Americans while still ensuring that intelligence can be gathered that’s necessary to keep our country safe.” He also indicated both that he wants to see President Obama’s legislation, and that he is working with the authors of the USA FREEDOM Act and others in Congress to figure out “the appropriate way to move forward.”

But there’s already an appropriate way to move forward. While bipartisan conversations about NSA surveillance are a good thing, there’s a strong piece of legislation that Rep. Goodlatte should usher through his committee.

USA FREEDOM: The way forward

The USA FREEDOM Act (H.R. 3361/S. 1599) would make real change to NSA surveillance. This bipartisan bill is sponsored by Rep. Jim Sensenbrenner (R-WI and original author of the USA PATRIOT Act) in the House and Sen. Patrick Leahy (D-VT) in the Senate. While this bill doesn’t address all the issues with NSA spying, it is an excellent start.

The USA FREEDOM Act could end the mass warrantless collection of phone records of millions of people, something President Obama himself has signaled support for. It would limit the government’s authority to search the database of communications collected under Section 702. It would improve the FISA Court by allowing some significant decisions to be published and by creating a special advocate in the court. The bill includes a provision that would allow companies to be more transparent about government access to their data as well. It would even touch on some of the issues with National Security Letters.

Not only is the USA FREEDOM Act a strong proposal, it has the most support of any NSA reform legislation. The same language has been introduced in the House and the Senate, and there are currently 21 cosponsors in the Senate and 163 in the House. And supporters of the bill logged over 71,000 calls in a single day of action in February. Thousands more sent emails. Now, USA FREEDOM needs to be moved through the committee process, marked up, and discussed on the floors of Congress.

Rep. Goodlatte holds a significant amount of power at this point, and while his statements that he takes NSA spying seriously are encouraging, his actions need to match that concern. Goodlatte needs to assert his committee’s jurisdiction over NSA reform legislation now by moving to mark up USA FREEDOM. Waiting for another proposal, from the President or anyone else, is simply unnecessary.

Fortunately, we’ve made it easy for you to contact Congress today and tell them to move forward with USA FREEDOM. If Rep. Goodlatte is your member of Congress, you should note that you want to see his committee take up USA FREEDOM. If your representative hasn’t co-sponsored USA FREEDOM yet, tell them to put their name on the only piece of bipartisan legislation that protects your rights.

We’ve been hearing about how bad the NSA is every day for months, but making sure that the USA FREEDOM Act doesn’t die is where the rubber meets the road.